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2011 Supreme(Raj) 1098
[Citation : 2012(3) RLW 2073 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
State of Raj. & Ors. Vs. Rajpal Singh Chauhan (Jain-I, J.)
HON'BLE NARENDRA KUMAR JAIN-I, J.
State of Rajasthan & Ors.
Versus
Raj Pal Singh Chauhan
S.B. Civil Misc. Application No.329 of 2011
IN
S.B. Civil Second Appeal No.54 of 2010
WITH
S.B. Civil Misc. Application No.330/2011
IN
S.B. Civil Second Appeal No.472/2009, decided on 21.10.2011
Ms. Raj Sharma, for Appellants;
S.S. Hora, for Respondent
Headnote:C.P.C., Sec. 100 read with Limitation Act, 1963, Sec. 5 — Maintainability of second appeal — Dismissal of appeal as time barred, consequent upon dismissal of application u/Sec. 5 of Limitation Act — Reling of order on the ground of having no knowledge about subsequent judgment of Apex Court — Held — Order passed in second appeal recalled as the same is based on over ruled judgment — Second appeal, against order dismissing first appeal being time barred, consequent upon dismissal of application u/Sec. 5 of Limitation Act, is maintainable. (Paras 9 & 10)
Application allowed.
fl-iz-la-] /kkjk 100 lifBr ifjlhek vf/kfu;e] 1963] /kkjk 5 & f}rh; vihy dh iks"k.kh;rk & ifjlhek vf/kfu;e dh /kkjk 5 ds rgr vkosnu [kkfjt gksus ds QyLo:i dky oftZr gksus ds dkj.k vihy [kkfjt djuk & loksZPp U;k;ky; ds i'pkrorhZ fu.kZ; ds ckjs esa dksbZ tkudkjh ugha gksus ds vk/kkj ij vkns'k ij fo'okl djuk & vfHkfu/kkZfjr & f}rh; vihy esaikfjr vkns'k okil fy;k D;ksafd og ukeatwj fd;s x;s fu.kZ; ij vk/kkfjr gS & izFke vihy [kkfjt djus ds vkns'k ds fo:) f}rh; vihy dky oftZr gksus ds dkj.k] ifjlhek vf/kfu;e dh /kkjk 5 ds rgr vkosnu ds [kkfjt gksus ds QyLo:i iks"k.kh; gSA ¼in la[;k 9] 10½
izkFkZuk i= Lohdkj fd;kA
2. The applicant/plaintiff/respondent has filed these applications in S.B.Civil Second Appeal No.54/2010 and S.B.Civil Second Apeal No.472/2009 for recalling of the order of this Court dated 22nd February, 2011 (reported in AIR 2011 Raj. 101; 2011 (2) ILR (Raj.) 301 & 2011 (2) WLC Raj. 595).
3. Learned counsel for applicant/respondent submitted that he had raised a preliminary objection about maintainability of the second appeals, which were directed against dismissal of the appeals being barred by limitation, consequent upon dismissal of the applications under Section 5 of the Limitation Act and in support of his contention, he relied upon judgment of the Hon'ble Apex Court in the case of Ratansingh vs. Vijaysingh and Others reported in AIR 2001 Supreme Court 279 and Full Bench decision of Karnataka High Court in the case of The Commissioner, Hubli-Dharwad Municipal Corpn. vs. Shrishail & Others, reported in AIR 2004 Karnataka 75 (Full Bench), at the time of raising preliminary objection, he was not aware that the judgment of the Hon’ble Supreme Court in Ratansingh vs. Vijaysingh (supra) had already been overruled by Larger Bench of the Hon’ble Supreme Court in Shyam Sunder Sarma vs. Pannalal Jaiswal reported in AIR 2005 Supreme Court 226 = RLW 2005(2) SC 189. He has further submitted that when he came to know about the subsequent judgment of the Hon’ble Supreme Court, then he contacted the applicant and advised him to move the present application for recalling of the order. He has further submitted that he is deeply regretted and for which he places on record an unqualified apology.
4. Learned counsel for non-applicant/defendants/appellant submitted that she had no knowledge about subsequent judgment of Hon’ble Supreme Court delivered in Shyam Sunder Sarma vs. Pannalal Jaiswal (supra), therefore, she could not bring the said judgment when the appeal was argued. Therefore, she also regrets and apologize for the same.
5. Learned counsel for both the parties agreed and submitted that order of this Court dated 22nd February, 2011 be recalled.
6. In both the cases, the suit for declaration filed by plaintiff was decreed by trial court and first appeals preferred by defendants were admittedly barred by limitation and in both the cases, applications under Section 5 of the Limitation Act for condonation of delay in filing the first appeal were dismissed and consequently, first appeals were also dismissed being barred by limitation. The said orders of first appellate court were challenged in both the above referred second appeals preferred on behalf of the defendants/State of Rajasthan.
7. A preliminary objection was taken by learned counsel for plaintiff-respondents that order dismissing the application for condoning the delay in filing the appeal was not a decree, therefore, second appeal is not maintainable and in support of his contention, he relied upon a judgment of the Hon’ble Supreme Court in Ratansingh vs. Vijaysingh (supra) and judgment of Full Bench of Karnataka High Court in the Commissioner, Hubli-Dharwad Municipal Corpn. vs. Shrishail & Others (supra). No other judgment including the judgment of Hon’ble Supreme Court delivered in Shyam Sunder Sarma vs. Pannalal Jaiswal (supra) was referred by learned counsel for any of the parties. Since, preliminary objection of learned counsel for respondent was based on judgment of the Supreme Court and Full Bench Judgment of the Karnataka High Court and no contrary judgment was referred or brought to my notice, therefore, it was held by this Court that both the second appeals are not maintainable and they were dismissed as such with liberty to appellants to file revision petitions against impugned orders.
8. It appears that judgment of Hon’ble Supreme Court in Ratansingh vs. Vijaysingh (supra) was considered by Three Judge Bench of Supreme Court in Shyam Sunder Sarma vs. Pannalal Jaiswal (supra) and the view expressed by two judges
